03 Jan 20

Qualified and Non-Qualified Offenses

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Last Updated on: 5th August 2023, 03:52 pm

Bail in New York State: Qualified and Non-Qualified Offenses

Though this may shock criminal defense lawyers, prosecutors, and judges throughout the state, the bail system in New York is much weaker than it used to be. Bail is no longer a chief consideration in the majority of criminal hearings. In fact, depending on what crime you’re being charged with, there might not even be a consideration of bail for your arraignment. Rather than needing to pay money to be released from jail, the majority of prisoners in New York will be released on their own recognizance while they await trial. This type of release, commonly abbreviated ROR, means that the individual is released from jail without needing to satisfy any monetary issues.

There are circumstances in which the accusation has to do with a Qualified Offense. When a Qualified Offense is on the table, the prosecution might decide to have a custodial securing order when you have your arraignment. It is required that the court impose the least restrictive measure possible to make you return for your trial. Since many people can’t afford to pay bail, the New York bail system is supposed to post bail only in special circumstances rather than as the default.

Qualified Offenses

These are the qualifying offenses that can cause a custodial arrangement or bail sum to be posted at your arraignment:

  • The majority of violent felonies, only excluding two specific subsections of second degree robbery and burglary
  • Witness intimidation
  • Witness tampering
  • Any Class A felony that is not a controlled substance crime (though major drug trafficking is a qualifying offense)
  • Any felony sex crime or misdemeanor, along with any degree of incest
  • Second degree conspiracy if the conspiracy was to commit a Class A felony
  • Money laundering in the first or second degree in support of terrorism and any other law regarding terrorism (except for making terroristic threats)
  • Certain levels of criminal contempt that stem from violating a restraining order put in place over domestic violence
  • Facilitating a child’s sexual performance with mind-altering substances, using a child in a sexual performance, or luring a child

Though these are Qualifying Offenses, that doesn’t mean that you will automatically be trapped in jail until your trial if you’re accused of one of these. If you are arraigned on a felony indictment or complaint, the court has to release you unless there’s a proven analysis showing that you’re at risk of running to avoid being prosecuted.

If you are determined to be a flight risk, the New York judicial system is still required to employ the least restrictive possible measure to make sure that you come back to court. The judge might set monetary bail if you meet a qualifying offense. If there is no provision that prevents a non-monetary condition for release, the judge may set one. A judge might also choose to release you on your own recognizance.

Even in the rare circumstances in which a judge does set bail, the monetary value is set only after your individual and specific financial circumstances are examined. If you’re judged capable of meeting the financial need, the bail can be set; if it would pose an undue hardship, the judge will need to find a different way.

Non-Qualified Offenses

Any crime that hasn’t specifically been listed as a Qualified Offense is then considered a non-qualified offense by default. Any person who has been arrested for a non-qualified offense must be released on their own recognizance by the judge according to New York law. There is only one exception to this rule, which is when the court determines both in the auditory record and in writing that there are reasons that ROR will not assure that you will return to court.

Even if this exception is met, it’s not legal to set bail. The court must instead use an alternative, non-monetary condition to release you. Monetary bail is not legally an option for most criminal offenses and arrests. Unless you meet one of the qualified offenses, you don’t need to worry about scrounging up the money for bail. After your arraignment, you’ll be released from jail regardless of whether the offense was an indictment, felony complaint, or misdemeanor complaint.

The Importance of a Defense Attorney

Even though most people will not have to worry about arguing about bail conditions, it’s still vitally important to have legal counsel with you during your arraignment. The arraignment is when the official charges against you are read. You should get in contact with your lawyer immediately after your arrest, and don’t speak to law enforcement without them present. At the arraignment, your lawyer can take notes about the charges and their severity, and explain them to you afterward.